826 F.

2d 230

44 Fair Empl.Prac.Cas. 977,

44 Empl. Prac. Dec. P 37,376
Matthew E. JACKSON, Jr., Appellant,
v.
UNIVERSITY OF PITTSBURGH, David C. Sullivan and
Wesley W.
Posvar, in their official and individual capacities.
No. 86-3391.

United States Court of Appeals,

Third Circuit.
Argued Feb. 11, 1987.
Decided Aug. 19, 1987.

Matthew E. Jackson, Jr., Pittsburgh, Pa., pro se.

Steven P. Fulton, Martha Hartle Munsch (argued), Reed, Smith, Shaw and
McClay, Pittsburgh, Pa., for appellees.
Before HIGGINBOTHAM and STAPLETON, Circuit Judges, and
RODRIGUEZ, District Judge.*
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This appeal requires us to determine whether summary judgment was properly

granted for the defendants-appellees in an employment discrimination case.
Because record evidence demonstrates the existence of genuine issues of
material fact that must be resolved at trial, we determine that, in part, it was not
properly granted. We therefore will reverse the judgment of the district court on
appellant's federal claims concerning his discharge and remand them for trial.

I. BACKGROUND
2

Appellant Matthew E. Jackson, Jr., who is black, was hired on July 15, 1975 by

Appellant Matthew E. Jackson, Jr., who is black, was hired on July 15, 1975 by
appellee the University of Pittsburgh ("Pitt") to work as an attorney in its legal
department. Jackson continued in this position until January 3, 1984, when he
was discharged by appellee David C. Sullivan, who had then been Pitt's general
counsel, and Jackson's supervisor, for one year. Jackson thereafter filed an
internal grievance with Pitt concerning his termination; he also complained to
the Pennsylvania Human Relations Commission ("PHRC"), the Equal
Employment Opportunity Commission ("EEOC") and the Office of Federal
Contract Compliance Programs ("OFCCP"), that his discharge was racially
motivated.1 On February 1, 1985, Jackson commenced this action, alleging
federal claims under Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec.
2000e-2 (1982), and Section 1981 of the Civil Rights Act of 1866 and the
Voting Rights Act of 1870, 42 U.S.C. Sec. 1981 (1982), and pendent state
claims. After discovery and a hearing, the district court denied Jackson's
motion for summary judgment and entered summary judgment for appellees.
Jackson v. University of Pittsburgh, No. 85-0264 (W.D.Pa. June 11, 1986).
This appeal followed. Our jurisdiction is conferred by 28 U.S.C. Sec. 1291
(1982).

II. THE GOVERNING LAW

3

We review grants and denials of summary judgment by applying the same test a
district court should employ. Marek v. Marpan Two, Inc., 817 F.2d 242, 244
(3d Cir.1987); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d
Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977);
see generally Bushman v. Halm, 798 F.2d 651, 656-57 (3d Cir.1986). Rule 56
permits a district court to grant a summary judgment motion only when "the
pleadings, deposition, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). A disputed factual matter is a "genuine" issue "if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510,
91 L.Ed.2d 202 (1986). "Material" facts are those "that might affect the
outcome of the suit under the governing law...." Id.

4
Inferences
to be drawn from the underlying facts contained in the evidential sources
submitted to the trial court must be viewed in the light most favorable to the party
opposing the motion. The non-movant's allegations must be taken as true and, when
these assertions conflict with those of the movant, the former must receive the
benefit of the doubt.
5

Goodman, 534 F.2d at 573 (footnote omitted).

In a federal discrimination case such as this one, the governing law includes the
"method of ... presumptions and shifting burdens of production" set forth by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973) ("McDonnell Douglas"), and its progeny. Dillon
v. Coles, 746 F.2d 998, 1003 (3d Cir.1984).

7
First,
the plaintiff has the burden of proving by the preponderance of the evidence a
prima facie case of discrimination. Second, if the plaintiff succeeds in proving the
prima facie case, the burden shifts to the defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's [dismissal]." Third, should the
defendant carry this burden, the plaintiff must then have an opportunity to prove by
a preponderance of the evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for discrimination.
8

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct.
1089, 1093, 67 L.Ed.2d 207 (1981) ("Burdine") (quoting McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. at 1824); see generally Robinson v. Lehman, 771 F.2d
772, 777 n. 13 (3d Cir.1985); Kunda v. Muhlenberg College, 621 F.2d 532,
541-43 (3d Cir.1980).

This Court noted recently, in the context of a federal age discrimination claim,
that "a defendant's burden of production as the moving party on summary
judgment generally is to show that the plaintiff cannot meet his [or her] burden
of proof at trial." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 895 (3d
Cir.1987) (in banc), cert. dismissed, --- U.S. ---, 108 S.Ct. 26 (1987). This
burden on the moving defendant is not satisfied, however, "merely by showing
the plaintiff's inability to prove by direct evidence that the defendant's proffered
reason is a pretext for ... discrimination." Id. (original emphasis). At the
summary judgment stage, in other words, "all that is required [for a nonmoving party to survive the motion] is that sufficient evidence supporting the
claimed factual dispute be shown to require a jury or judge to resolve [at trial]
the parties' differing versions of the truth...." First Nat'l Bank of Ariz. v. Cities
Servs. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).
Further, because

10
intent
is a substantive element of this cause of action--generally to be inferred from
the facts and conduct of the parties--the principle is particularly apt that courts
should not draw factual inferences in favor of the moving party and should not
resolve any genuine issues of credibility.
11

Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981) (original emphasis).

III. APPELLEES' MOTION FOR SUMMARY JUDGMENT

12

Appellees' motion for summary judgment, which the district court granted,
sought judgment in its favor "in all respects." App. at 791. Thus, while the
district court's brief opinion is less than clear in explaining the precise claims to
which its order applies, we have concluded that the district court entered
summary judgment for appellees on Jackson's Title VII and Section 1981
claims concerning his discharge, on his similar federal claims concerning Pitt's
processing of his grievance, and on his pendent state claims alleging fraud,
defamation and invasion of privacy. We will address these distinct summary
judgments in that order.

A. Pitt's Discharge of Jackson

13

Appellees make no contention that Jackson has failed to establish a prima facie
case under the McDonnell Douglas method of proof. We note that (i) he
belongs to a racial minority; (ii) he was employed as one of Pitt's in-house
attorneys and was qualified for that position; (iii) he was discharged from that
position; and (iv) his co-workers, who are white, were not discharged. The
district court correctly found that Jackson established a prima facie case. See
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Bellissimo v.
Westinghouse Elec. Corp., 764 F.2d 175, 179-80 (3d Cir.1985) ("A plaintiff
alleging a discriminatory firing need only show that he [or she] was fired from
a job for which he [or she] was qualified while others not in the protected class
were treated more favorably.... Proof of discharge will establish a prima facie
showing in a Title VII suit."), cert. denied, 475 U.S. 1035, 106 S.Ct. 1244, 89
L.Ed.2d 353 (1986). Jackson, in other words, carried his "initial burden of
showing actions taken by the employer from which one can infer, if such
actions remain unexplained, that it is more likely than not that such actions
were 'based on a discriminatory criterion illegal under [Title VII].' " Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d
957 (1978) ("Furnco") (quoting International Bhd. of Teamsters v. United
States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977)); cf.
EEOC v. Hall's Motor Transit Co., 789 F.2d 1011, 1015 (3d Cir.1986) ("an
employer's decision to discharge an employee may superficially appear to be
justified by legitimate business reasons and yet [may] have been motivated by
racial prejudice").

14

Under McDonnell Douglas, appellees have also fulfilled their ensuing burden
of production "to articulate some legitimate, nondiscriminatory reason" for
Jackson's dismissal. 411 U.S. at 802, 93 S.Ct. at 1824. The summary judgment
record now before us includes depositions, affidavits, documents and other

evidence supporting appellees' position that Jackson "was simply a poor

performer," Brief of Defendants-Appellees at 21, who was, accordingly,
dismissed from his job.2
15

The true dispute in this appeal concerns the third stage of the McDonnell
Douglas method of proof: Has Jackson introduced sufficient evidence to
demonstrate the existence of a genuine issue whether appellees' "proffered
justification is merely a pretext for discrimination"? Furnco, 438 U.S. at 578, 98
S.Ct. at 2950. The district court concluded that Jackson's record evidence does
not create such an issue; it "f[ound] no evidence of racial animus but on the
contrary not[ed] abundant instances of unsatisfactory work performance [by
Jackson that Sullivan] might reasonably regard as sufficient cause for
discharge...." Jackson, No. 85-0264, mem. op. at 2 (W.D.Pa. June 11, 1986).

16

We reject the district court's conclusion. The record, including Jackson's

lengthy deposition, contains more than "a scrap of evidentiary material to
support h[is] argument." Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 113
(5th Cir.1986). Instead, throughout nearly 700 transcript pages, Jackson's
deposition in numerous ways calls into question appellees' claims that Jackson
was dismissed for performance deficiencies. Jackson's basic position is that he
never received any complaints about--and, indeed, that he was often
complimented for--his legal work during his years at Pitt. E.g., App. at 59, 427,
482-84, 527 (Deposition of Matthew E. Jackson, Jr.). Jackson also claims that
Sullivan in particular never made specific complaints or gave Jackson "facts
about anything," id. at 234 (same); that Sullivan, after discharging Jackson,
began to solicit complaints about his work by calling "numerous individuals" at
Pitt, id. at 352 (same); that Sullivan, after discharging Jackson, was seen
"walking around the halls like a wild man," id. at 283 (same), "talking about he
was going to ruin [Jackson's] reputation and destroy [him]," id. at 286 (same);
and that Sullivan told Jackson's attorney "that [Sullivan] would ruin and destroy
[Jackson,] ... something to the effect that [Jackson] would never be able to
practice law in Pittsburgh again."3 Id. at 360-61 (same). As a whole, such
record evidence is more than sufficient to support the reasonable inference that
Sullivan's criticisms of Jackson's performance are post hoc concoctions. It also
suffices to support an inference that Sullivan orchestrated a campaign to get rid
of Jackson because he is black. In refusing to draw such obvious inferences,
and thus in entering summary judgment for appellees, it appears that the district
court "invaded forbidden territory" that is reserved for a factfinder at trial.
Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d
Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977).

17

Additionally, as to the substantive legal tasks that appellees allege Jackson

mishandled during his years of employment at Pitt, Jackson counters with

claims that he was not the lawyer who was responsible for some of the matters
in question, App. at 111-12 (Deposition of Matthew E. Jackson, Jr.), and that
Sullivan refused Jackson's requests to bring in outside counsel to handle other
specialty matters. Id. at 546-50 (same). In addition, Jackson claims that he was
the only attorney in the office who had no secretary, id. at 63-64; 87, 96, 137,
542 (same), and that he alone was denied the assistance of less-experienced
legal staff members who were otherwise available. Id. at 205-06, 542-44
(same). Such evidence supports the reasonable inference that Jackson was
treated less favorably than his white colleagues in ways that could explain any
"deficiency" in his performance. Cf. Bellissimo, 764 F.2d at 180 (trial court
finding that Ms. Bellissimo proved pretext was "clearly erroneous because [she]
failed to make any showing of disparate treatment and because [defendant]
proved that its male attorneys were treated the same as she in the disputed
areas"). It suffices, in short, to raise a genuine issue of fact whether Jackson's
dismissal really had anything at all to do with his performance.
18

We make no claim to believe or to disbelieve Jackson's evidence. That, we

emphasize, is wholly the province of the factfinder at trial. See Bushman, 798
F.2d at 660 ("While plaintiff's credibility may be challenged by opposing
counsel at trial, it is not the function of the court to assume the role of the fact
finder upon summary judgment."); Graham v. F.B. Leopold Co., Inc., 779 F.2d
170, 173 (3d Cir.1985) ("What the district court chooses to infer or chooses not
to infer is simply not relevant to consideration of a summary judgment
motion."); Fireman's Fund Ins. Co., 540 F.2d at 1178 ("[i]t is the function of
the trier of fact alone ... to evaluate contradictory evidence"). We do note, and
by reciting the deposition evidence in such detail we mean to demonstrate,
however, that a factfinder reasonably could conclude that appellees' position is
mere pretext. Jackson's opposition to the summary judgment motion was
therefore not based only upon "t[he] bare-bone allegations in h[is] brief and
pleadings...." Alizadeh, 802 F.2d at 113; cf. Sola v. Lafayette College, 804 F.2d
40, 45 (3d Cir.1986) (affirming summary judgment where plaintiff "produced
no evidence [beyond her allegations] that she was denied tenure in part based
on her gender"); accord Kephart v. Institute of Gas Technology, 630 F.2d 1217,
1218 (7th Cir.1980) (per curiam) (affirming summary judgment for employer
in age discrimination case where "the subsidiary facts plaintiff put forward as
evidence ... [gave] no indications of motive and intent, supportive of his
position, to put on the scales for weighing [--i]t was a wholly empty case"),
cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); Pierce v.
New Process Co., 580 F.Supp. 1543, 1546 (W.D.Pa.) (granting summary
judgment for employer in age discrimination case where "plaintiff [was un]able
to present any facts to indicate pretext or discriminatory intent"), aff'd, 749 F.2d

27 (3d Cir.1984). It was, rather, based upon his own evidence and
comprehensive testimony, and was sufficient to withstand the motion for
summary judgment. See J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d
610, 617 (3d Cir.1987) (where "reasonable minds could differ[,] ... an issue of
material fact remains ... for the trier of fact"); Miller v. Fairchild Indus., Inc.,
797 F.2d 727, 732 (9th Cir.1986) (race discrimination plaintiffs relied upon
evidence including "their declarations" to survive employer's summary
judgment motion); Walters v. President & Fellows of Harvard College, 645
F.Supp. 100, 102 (D.Mass.1986) ("plaintiff's contentions ... [placed] the
underlying facts ... sufficiently in question that summary judgment is not
warranted") (emphasis added).
19

Appellees' central argument in this appeal--a position that the district court
appeared to adopt in granting their motion for summary judgment--is that
Jackson's deposition, because it is his only record evidence, is insufficient to
create a genuine factual issue on the ultimate question of race discrimination.
This position relies upon our decision in Molthan v. Temple Univ., 778 F.2d
955 (3d Cir.1985), affirming the entry of judgment for the defendant in a Title
VII sex discrimination suit. In Molthan, "we agree[d] with the district court that
no evidence was adduced from which a jury could reasonably have inferred that
sex discrimination played any part in the denial of [plaintiff's] promotion," and
we concluded that plaintiff's evidence there "was insufficient as a matter of law
to warrant any [such] inference...." Id. at 962. We did not hold, however,-contrary to appellees' assertions at oral argument before this Court--that a
discrimination plaintiff must offer "some evidence other than [his or] her own
subjective belief" or "put on at least one other witness other than [himself or]
herself" before his or her case will survive motions for summary judgment
and/or directed verdict,4 and we explicitly reject any intimations to the contrary.
There is simply no rule of law that provides that a discrimination plaintiff may
not testify in his or her own behalf, or that such testimony, standing alone, can
never make out a case of discrimination that will survive a motion for summary
judgment.

20

In today's climate of public opinion, blatant acts of discrimination--the true

"smoking guns"--can easily be identified, quickly condemned and often
rectified in the particular settings where they occur. Much of the discrimination
that remains resists legal attack exactly because it is so difficult to prove.
Discrimination victims often come to the legal process without witnesses and
with little direct evidence indicating the precise nature of the wrongs they have
suffered. That is one of the reasons why our legal system permits discrimination
plaintiffs to "prove [their] case[s] by direct or circumstantial evidence." United
States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3, 103

S.Ct. 1478, 1481 n. 3, 75 L.Ed.2d 403 (1983) (emphasis added); accord

Maxfield v. Sinclair Int'l, 766 F.2d 788, 791 (3d Cir.1985), cert. denied, 474
U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Lewis v. University of
Pittsburgh, 725 F.2d 910, 919 n.10 (3d Cir.1983), cert. denied, 469 U.S. 892,
105 S.Ct. 266, 83 L.Ed.2d 202 (1984). This record, unlike that in Molthan,
contains both circumstantial evidence and Jackson's direct evidence from which
a jury could reasonably infer that Jackson's performance as a lawyer was not
deficient, that appellees' claims to the contrary are mere pretext, and that race
discrimination played a role in Jackson's discharge.5 Therefore, because "the
issue of pretext turns on [Jackson']s credibility[, it] is not appropriate for
resolution on a summary judgment motion." Chipollini, 814 F.2d at 901; accord
Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 865 (3d Cir.1986)
(where "record contains more than simple accusations and speculation[,] ...
there is sufficient evidence to put [the employer's] motivation in issue"); cf.
Attorney Gen. of the United States v. Irish People, Inc., 796 F.2d 520, 523
(D.C.Cir.1986) (per curiam) (Bork, Scalia and Gesell, JJ.) ("affidavits from
[nonmovant organization's] officers and staff," which "District Court dismissed
... as conclusory and lacking particularity, ... were adequate to raise a genuine
issue of fact in light of the nature of the Attorney General's evidence and the
issue involved").
B. Pitt's Handling of Jackson's Grievance
21

Count II of Jackson's complaint alleges that Pitt, in processing Jackson's

grievance, intentionally deviated from the provisions of its Staff Handbook,
provisions that Pitt had previously represented as applying to all of its
employees, and that this deviation itself was racially motivated, in violation of
Title VII and Section 1981. See App. at 11. Appellees answer, inter alia, that
Jackson, who held a nonclassified staff position at Pitt, is not covered by the
handbook's grievance procedure for classified employees. On appellees' motion
for summary judgment, the district court denied Jackson's claim, which it
called a "procedural due process" claim, accepting instead appellees' argument
that Jackson is not covered by the Staff Handbook procedure.6 Jackson, No.
85-0264, mem. op. at 2 (W.D.Pa. June 11, 1986).

22

Jackson has not addressed this aspect of the district court's judgment in either of
his briefs or in his oral argument to this Court. Accordingly, we conclude that it
has not been appealed. See generally Delaware Valley Citizens' Council for
Clean Air v. Pennsylvania, 755 F.2d 38, 40 n. 2 (3d Cir.), cert. denied, 474 U.S.
819, 106 S.Ct. 67, 88 L.Ed.2d 54 (1985).

C. Jackson's Pendent Claims

23

After disposing of Jackson's federal claims, the district court asserted that it was
within "its discretion [to] decline to consider the pendent State claims...."
Jackson, No. 85-0264, mem. op. at 2 (W.D.Pa. June 11, 1986). Convinced that
these pendent claims "raise[d] no peculiarly difficult or doubtful questions of
State law [that] should be reserved for disposition by State courts," id.,
however, the district court also granted appellees' motion for summary
judgment on these claims.

24

We conclude that this aspect of the district court judgment also has not been
appealed. The only reference to these claims is the final words on the final page
of Jackson's brief, which asks us to remand "for trial on the pendent state
claims." Brief for Appellant at 50. This is insufficient to put the issue before us.
See Fed.R.App.P. 28(a)(2) (appellant's brief must contain a statement of the
issues presented for review); cf. Brown v. Sielaff, 474 F.2d 826, 828 (3d
Cir.1973) (per curiam) (citing Rule 28 for the proposition that, where the
"appellant has not pressed a point in this appeal, we are unable to notice it").
Further, these claims are not addressed at all in Jackson's Reply Brief and were
not raised in the course of his oral argument. Accordingly, under the law of this
Circuit, he has "waived this issue on appeal." Delaware Valley Citizens'
Council For Clean Air, 755 F.2d at 40 n. 2 (issue "not addressed in appellant's
brief, reply brief or at oral argument"); accord Lugar v. Texaco, Inc., 755 F.2d
53, 57 n.2 (3d Cir.1985); NLRB v. Wolff & Munier, Inc., 747 F.2d 156, 167
(3d Cir.1984) (Sloviter, J., dissenting); Battle v. Pennsylvania, 629 F.2d 269,
271 n. 1 (3d Cir.1980), cert. denied sub nom. Scanlon v. Battle, 452 U.S. 968,
101 S.Ct. 3123, 69 L.Ed.2d 981 (1981).

IV. CONCLUSION
25

For the foregoing reasons, we will affirm the district court's denial of
appellant's motion for summary judgment. We will reverse the district court's
entry of summary judgment for appellees on appellant's federal claims
concerning his discharge and remand them for trial on the merits. Costs will be
taxed against appellees.

Honorable Joseph H. Rodriguez, United States District Judge for the District of
New Jersey, sitting by designation

On December 20, 1984, the OFCCP concluded that "[n]o elements of race
consideration were found in complainant's termination." Appendix for
Appellant ("App.") at 838. The record also indicates that Jackson withdrew his
PHRC and EEOC charges before either of those agencies had made a

determination. See id. at 529, 531 (Deposition of Matthew E. Jackson, Jr.).

Jackson did, however, receive right to sue letters from these agencies on
November 11, 1984, and December 17, 1984, respectively. Brief for Appellant
at 27
2

At the same time the district court granted appellees' motion for summary
judgment, it also denied Jackson's contemporaneous motion for summary
judgment. Jackson separately appeals the denial of his summary judgment
motion, claiming that, at stage two of the shifting McDonnell Douglas burdens,
appellees failed to articulate a legitimate, nondiscriminatory reason for their
challenged acts. In reality, however, this aspect of Jackson's appeal amounts to
a claim that appellees' proffered reasons for terminating him are unsupported
by a preponderance of the evidence and therefore are not worthy of credence.
See Brief for Appellant at 39-46. We conclude that any such assessment must
be made by the factfinder at trial; "[a]t the summary judgment stage, 'the
judge's function is not ... to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.' " Equimark
Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d
Cir.1987) (quoting Anderson, --- U.S. at ----, 106 S.Ct. at 2511). Accordingly,
we will affirm the district court's denial of Jackson's motion

We also note Sullivan's alleged statement of "hope [that Jackson] doesn't think
the black judges can help him." App. at 52a (Deposition of Matthew E.
Jackson, Jr.); see also id. at 284 (same)

Although the oral argument has not, to our knowledge, been transcribed, these
quotations from appellees' argument were obtained with care from the Court's
audio tape

This is the record evidence and the inferences drawn therefrom that a court is
not, at the summary judgment phase, free to minimize, much less disbelieve.
Molthan, which was not a summary judgment case, did, by contrast, involve
our Court's refusal to credit evidence--allegations that defendants there made a
number of sexist comments--that "[t]he district judge did not believe...." 778
F.2d at 962 n. 1

The district court found that "the grievance procedure upon which plaintiff
relies is applicable only to classified employees whose code numbers appear in
a specified list of job titles, which does not include plaintiff's job." Jackson, No.
85-0264, mem. op. at 2 (W.D.Pa. June 11, 1986)